Is it legal to start DROS when a customer is not present?

[tenpercentfirearms]

This came up in another thread.

It is entirely possible for a customer to fax, e-mail, or mail their ID to a dealer or for the dealer to use past documentation and start a DROS for a customer while the customer is not present. For those of you who don't understand what it means to be a dealer, you can actually do all sorts of illegal things and you won't know it until you get audited or caught in a sting. Just because a dealer does it, does not mean it is legal.

So, is starting DROS when a customer is not present legal?

First, the 4473 states in between part 15. and 16. that

I certify that the answers to section A are true and correct. [more text not-related] I also understand that making any false oral or written statement, or exhibiting any false or misrepresented identification with respect to this tansaction, is a crime punishable as a felony.

So if you have your dealer start you DROS today on September 21, 2008 and you are not present, when you show up to sign your 4473 on October 1, 2008 is that making a false statement? You are claiming you signed and dated the document on 9/21/08, but you did not.

Next, the instructions to make several mentions to the dating of the 4473.

Instructions to Transferee/Buyer

1. The buyer must personally complete Section A of this form and certify (sign) that hte answers are true and correct.

3. If the transfer of the fiream takes place on a different day from the date the buyer signed Section A, the seller must again check the phot identification of hte buyer at the tiem of hte transfer, and the buyer must compelte the recertification in Section C at the time of transfer.

So if the buyer is signing Section A on 10/1/08, then they do not need to complete Section C. Which might seem fine until an auditor from both the DOJ and the ATF ask why the person did not sign Section C.

So maybe you have them sign Section C anyway. Section C states

IF the transfer of the firearm(s) takes place on a different day form the date that the transferee (buyer) signed Section A, the transferee must complete Section C immediately prior to the transfer of the firearm(s).
I certify that the answers I provided to the questions in Section A of this form are still true and correct.

Are the answers you provided still correct? Did you or did you not sign Section A on 9/21/08 as this form states or did you sign it on 10/1/08 and therefore you are giving a false statement that is punishable as a felony?

Now lets move onto the DROS. The DROS makes no mention of dates anywhere on it. You just sign it and it says,

Falsification of information on this form is a crime, punishable by up to 18 months in state prison (Penal Code 12076)

So what does PC 12076 say?

It appears in the olden days, you used to have to sign the DROS and the dealer had to send it off to the DOJ by mail. So that would imply the customer would have to be present. However, those days are now over and you can't do that. Everything gets submitted electronically.

12076.(c)(1) (c)(1) Where the electronic or telephonic transfer of applicant information is used, the purchaser shall be required to present clear evidence of his or her identity and age, as defined in Section 12071, to the dealer, and the dealer shall require him or her to sign his or her current legal name to the record of electronic or telephonic transfer. The salesperson shall affix his or her signature to the record of electronic or telephonic transfer as a witness to the signature and identification of the purchaser. Any person furnishing a fictitious name or address or knowingly furnishing any incorrect information or knowingly omitting any information required to be provided for the electronic or telephonic transfer and any person violating any provision of this section is guilty of a misdemeanor, provided however, that any person who is prohibited from obtaining a firearm pursuant to Section 12021 or 12021.1 of this code, or Sections 8100 or 8103 of the Welfare and Institutions Code who knowingly furnishes a fictitious name or address or knowingly furnishes any incorrect information or knowingly omits any information required to be provided for the electronic or telephonic transfer shall be punished by imprisonment in a county jail not exceeding one year or imprisonment in a state prison for a term of 8, 12, or 18 months.
(2) The record of applicant information shall be transmitted to the Department of Justice in Sacramento by electronic or telephonic transfer on the date of the application to purchase.

Here is a dealer's requirement to get your signature, but it makes no mention of when you are supposed to get that signature. So it is quite possible California might not have a case if you are starting DROS early.

However, it does say that record of applicant information shall be transmitted to the Department of justice in Sacramento by electronic or telephone transfer on the date of the application to purchase. If the "application to purchase" is the 4473, then you cannot submit DROS until the 4473 is properly filled out. I have already made a weak case that if you are not dating the 4473 correctly, you might be violating the law. You might also be violating PC too.

But wait! We have PC 12077 to deal with too.

PC 12077(f) Effective January 1, 2003, the purchaser's name, date of birth, and driver's license or identification number shall be obtained electronically from the magnetic strip on the purchaser's driver's license or identification and shall not be supplied by any other means except as authorized by the department. This requirement shall not apply in either of the following cases:
(1) The purchaser's identification consists of a military identification card.
(2) Due to technical limitations, the magnetic stripe reader is unable to obtain the required information from the purchaser's identification. In those circumstances, the firearms dealer shall obtain a photocopy of the identification as proof of compliance.
(3) In the event that the dealer has reported to the department that the dealer's equipment has failed, information pursuant to this subdivision shall be obtained by an alternative method to be determined by the department.

A dealer is required to obtain electronically from a magnetic strip your driver's license information. The only exception is if your magnetic strip reader is not working. So if you are starting DROSes early, you had best have a copy of the DL (front and back side) handy or you are violating 12077 by manually inputting the information when your equipment has not failed. Also, you will have to possibly explain why your equipment failed on that one day and not for the rest of the DROS you have been running.

So in conclusion, if you are dating the 4473 on a date you actually did not date it, you might be committing a felony. If you are a dealer who is not capturing DL or ID informatin by magnetic stripe, your magnetic card reader must be defective and you must have a front and back side copy of the DL or ID.

Of course we could ask the DOJ what they think about it, but I already know the answer. They are going to say you can't do it.

Again, I think this is a gray area. However, the DOJ or ATF would pretty much have to send in an undercover agent to get you on this one. During an audit as long as you have everything dated correctly, how would they know the customer wasn't present? The odds of them searching down your customer and asking them when they really did or did not come in is slim. However, I would understand if a dealer does not want to risk their livelihood and possible prison time for customer convenience. It is my policy that you have to come in to start your ten days. That is my choice.

And of course I spent about an hour on this project and I need to get going. I will have to search the CCR later today to find out if we are missing some code that actually puts us in violation of any of those PCs I stated.

[OCArmory]

I was reading the federal handbook. I can't remember where it was but it mentioned something about mail order firearms. It had you mailing the 4473 to the customer and them filing it out. I'll try and look it up.
Mike

[CCWFacts]

It is my policy that you have to come in to start your ten days. That is my choice.

I think that's a good choice. Taking the risk of having to argue this all in court, perhaps facing criminal charges, just for some customer's convenience... that is so not worth it.

Anyway, from a dealer's perspective, getting the customer in the store twice means twice the opportunity for the customer to look around the shop, buy accessories, see another gun he might be interested in, build a customer relationship, etc. I realize, most gun shops are unfriendly and unhelpful places, but for those that do value customer service (such as yours from what I can tell) having two customer visits could be seen as a plus.

[CSACANNONEER]

OK, just to play devil's advocate, one could send a signature electronicaly on a given date and then would not be lieing on his 4473.

[Theseus]

Actually an interesting proposition...

Why can't someone electronically sign the documents like they do a tax return or many other government forms?

With that in mind someone could create a PDF form that one can fill out and send to a dealer online. He is still signing the form, just electronically.

Even in 12076 it does not specify WHEN I am supposed to be there, only that I have to provide proof of age WHERE the information is used. Unless there is somewhere else, it seems that my electronic form completion might be an acceptable approach.

The clincher is the DL requirement. It would indicate then that the person needs to be present, thus the strip requirement. But Turners never actually read the strip on my DL, and neither did Big 5 come to think of it. They did make copies, but not swipe. . . Do they have exemptions?

[383green]

Regarding the DL magnetic strip: What if the buyer has moved? As I recall, DMV just has you write your new address on the back of the license, and they don't want to be bothered with printing you a new one until the old one is about to expire. So, if the customer has moved, the FFL is still required to read their info off the magnetic strip, yet the magnetic strip no longer has a correct address.

Maybe the answer is that upon change of address, the magnetic strip needs to encounter a speaker magnet, so that swipes will fail and the FFL will then be allowed to manually input the correct address, which is presumably written on the back of the DL as required.

[bohoki]

seems to me that if a customer has a 4473 top half filled out and a paper dros form and a copy of a drivers licence(that has been demagnetized) mailed to the dealer they ought to be able to start the dros

the trick is how a customer has a 4473 and the paperwork dros(aka the gunshow dros)

[AngelDecoys]

Anyway, from a dealer's perspective, getting the customer in the store twice means twice the opportunity for the customer to look around the shop, buy accessories, see another gun he might be interested in, build a customer relationship, etc.

Agree for a local customer. Foot traffic is always good. Not so otherwise. Consider the potential customer who wants a specific lower (for instance) and Wes is the only guy who has it. Rather than have it mailed, then transfered to another FFL for an extra fee (perhaps to Redding for argument sake), the customer does the form online, waits the 10 days, then picks up said item in Taft while visiting family or something else. No need to do two trips, and the FFL could make more business from those of us who would prefer to avoid an extra long drive (twice).

The clincher is the DL requirement. It would indicate then that the person needs to be present, thus the strip requirement.

That's actually not really an issue. Once you've made 1 purchase where the DL is scanned, so long as nothing else changes, there's no reason to scan it back in. The original scan can be saved. (Also consider the customer retention knowing the FFL already has the DL scanned ready to use).

OK, just to play devil's advocate, one could send a signature electronicaly on a given date and then would not be lieing on his 4473.

That's part of my initial question in another thread. Will the DOJ take an electronic signature, or is modernizing the way the state does business something worth pursuing.

[tenpercentfirearms]

OK, just to play devil's advocate, one could send a signature electronicaly on a given date and then would not be lieing on his 4473.

From the 4473 "Prepare in original only. All entries must be in ink." They do not give electronic signature as an option. Ink only.

seems to me that if a customer has a 4473 top half filled out and a paper dros form and a copy of a drivers licence(that has been demagnetized) mailed to the dealer they ought to be able to start the dros

What gives you that feeling? Did the customer sign the 4473 on the date the background check was started? You signed it three days ago and it just showed up. I was supposed to start your background check on that date. I also did not attempt to swipe your DL through the magnetic reader like I am required too. Oh, you tell me it is defective? I am not sure if that is going to cut it.

We still have to ask, why would a dealer want to risk this kind of practice for in the first place? What amount of money is worth me losing my license over? None. Some customer's might not like it, but you have to come in to start DROS. That keeps me from getting in trouble and maybe even you from getting in trouble with the DOJ and/or ATF. That keeps me in business, you out of jail, and all of us happy in the long run.

That's actually not really an issue. Once you've made 1 purchase where the DL is scanned, so long as nothing else changes, there's no reason to scan it back in. The original scan can be saved. (Also consider the customer retention knowing the FFL already has the DL scanned ready to use).

That might be a bit of a stretch to say that once a dealer takes a copy of the DL info, then they no longer have to swipe again. Actually, I would think your example is quite false. It says the information must come from the magnetic swipe. If I am storing it on my computer and then retrieving it from my hard drive, I am not following this

PC 12077(f) Effective January 1, 2003, the purchaser's name, date of birth, and driver's license or identification number shall be obtained electronically from the magnetic strip on the purchaser's driver's license or identification and shall not be supplied by any other means except as authorized by the department.

You could argue that it came from the magnetic stripe once before, but I would think the DA would have an easy time arguing it did not come from the stripe, it came from your hard drive.

Not to mention, how do you store that data on your hard drive and then resubmit it to DROS when you fill out the new form? As far as I know you hit F7 or whatever it is and then swipe the card. If you hit any other button and submit the info from your computer, you are not using the magnetic strip.

Why don't I even know what button it is? My magnetic readers have never worked. I have always used front and back side copy of my DL because my magnetic reader has always been defective.

And again, why would the dealer want to go through all of this trouble? Why would I want to retain your DL info in some separate database for re-submitting DROS data when you are not around? What amount of money is worth me losing my license over? None. Just come back in again. Sorry.

***********************
And just as an aside, I actually take my job of making sure I know who my customer is seriously. I want to see a live person in my shop, see their DL and inspect it, and make reasonably sure who I am dealing with is legit. I am not sure I can do that by mail. Now on repeat customers, it might make some sense since I have seen them and was able to verify their ID and they have already passed background checks in the past. First time customers, it makes no sense.

We don't have to like it, but we are trying to make sure the right people are getting guns and the wrong people are not. That is still a concern of mine.

[AngelDecoys]

Wes, I am well aware many here might be impressed with you being an FFL, or in your master's degree in poster making. I am not. Don't take this the wrong way, but I think your tone in posting spills over from the classroom.

What you, or any other FFL do in the business is of no concern to me. The fact that some seem to do it differently is a bit ironic, but that's not the thrust of my point. In all likelihood the 10 day wait will be with us forever. That may change with a court challenge at some point, but is unlikely to happen willingly via the CA legislature.

My point is a simple one with regards to potentially modernizing the system. So I repeat the question with regards to changing the law so that the system becomes more streamlined in CA, perhaps paperless, and possibly requiring only 1 trip. Besides accepting a digital signature, what else might be necessary?

Wes, there is nothing wrong with attempting to keep the 'bad people' from obtaining guns, but there is also nothing wrong with looking at the current system in CA, and trying to make it workable for those of us who don't like wasting our time on two trips for 1 purchase.

[hoffmang]

We'll get subsequent waiting periods killed before we can convince DOJ BoF to accept digital signatures. I mean that in a really good way, btw.

-Gene

[tenpercentfirearms]

Wes, I am well aware many here might be impressed with you being an FFL, or in your master's degree in poster making. I am not. Don't take this the wrong way, but I think your tone in posting spills over from the classroom.

What does this have to do with anything? Since when does what I have posted have anything to do with me being an FFL or a classroom teacher? Either what I am saying has merit or it doesn't. What I do has nothing to do with my statements. Of course if my statements were faulty, then you would attack those instead of me. Honestly, it appears to me you are upset about my post for some reason and I am not sure why. I clearly and sufficiently stated why I think your point was not correct. You respond with questioning my credentials? That is not good for your credibility. Stay on topic.

My point is a simple one with regards to potentially modernizing the system. So I repeat the question with regards to changing the law so that the system becomes more streamlined in CA, perhaps paperless, and possibly requiring only 1 trip. Besides accepting a digital signature, what else might be necessary?

Wes, there is nothing wrong with attempting to keep the 'bad people' from obtaining guns, but there is also nothing wrong with looking at the current system in CA, and trying to make it workable for those of us who don't like wasting our time on two trips for 1 purchase.

I get the impression that you think I am against streamlining the system. I never stated such a thing.

I get the impression you are confusing our discussion of complying with the current system with a potential desire to reform the system. I created this thread to discuss the current system and what is legal and what is not. You want to talk about the DOJ creating digitial signatures so it is easier for consumers to purchase firearms. That is fine, I have no problem with thread drift to an extent. However, what appears to be your criticism of me doesn't make any sense since I did not respond to your desire to reform the system at all. I have made no statement of position on it so how can you ask me to try and reform the system like I stated I didn't want to?

As Gene has pointed out, digital signatures is pretty insiginificant in the grand scheme of things. We have established that state law nor the DROS form specifies that you must sign the DROS on the date of submission. It is actually the 4473 that kind of implies you have to sign the 4473 on the date of submission. Second, the 4473 must be completed in ink so you can't use digital signature.

If we push this issue, the odds of the powers that be saying you can use digital signature in order to avoid having to be present to start a ten day wait would be quite slim. If nothing else I would expect them to actually pass law or regulations that specify in order to reduce ID theft and fraud, the customer must be present to start the ten day wait. And they would get away with it to stop the terrorists.

Gene brings up that we are much more likely to get a NICS type instant check or a first 10 day wait only system before we get them to accept digital signatures, which won't really solve our problem of having to swipe the DL anyway.

When it comes down to it, you might have forgotten that the entire process is supposed to be a hassle and confusing in order to discourage you from buying firearms.

[AngelDecoys]

Wes, I just think for whatever reason you push my buttons. Please disregard.

BTW - Wouldn't it be great if you just needed to hit copy/paste to run a dros (over entering in the written paperwork)?

As Gene mentions, its more likely for CA to conform to the NCIS type system then to ever adopt digital signatures. I'm just tired of all the hassle and hoops of flame we need to jump through.

[tenpercentfirearms]

As Gene mentions, its more likely for CA to conform to the NCIS type system then to ever adopt digital signatures. I'm just tired of all the hassle and hoops of flame we need to jump through.

Oh you are not the only one! We are turning things around. We just need to stick with it.

Just be thankful you are not in the business of auditing all of those hoops to make sure you are not doing anything illegal. I am going to spend all of tomorrow afternoon making sure everyone filled out 4473s and DROS right. Let me tell you what a joy that is.

[FortCourageArmory]

I am going to spend all of tomorrow afternoon making sure everyone filled out 4473s and DROS right. Let me tell you what a joy that is.

Wes,
Having done that very thing not too long ago, I feel your pain. Maybe one day, we'll be able to streamline this ponderous process. Until then, I, at least, appreciate the info you put out.